Citation Nr: 0608196
Decision Date: 03/22/06 Archive Date: 04/04/06
DOCKET NO. 02-01 045A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Entitlement to an evaluation in excess of 60 percent for
a low back disability.
2. Entitlement to an evaluation in excess of 10 percent
prior to January 12, 2004, for bipolar disorder.
3. Entitlement to an evaluation in excess of 30 percent for
the period beginning on January 12, 2004, for bipolar
disorder.
4. Entitlement to an evaluation in excess of 10 percent for
plantar fasciitis, left foot.
5. Entitlement to an evaluation in excess of 30 percent for
macular hole, right eye.
6. Entitlement to a rating of total disability on the basis
of individual unemployability (TDIU).
7. Entitlement to a non-service-connected pension.
ATTORNEY FOR THE BOARD
W.T. SNYDER, Associate Counsel
INTRODUCTION
The veteran had active service from February 1983 to April
1996.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions of the Roanoke,
Virginia, Regional Office (RO) of the Department of Veterans
Affairs (VA). A September 2001 rating decision denied
increases for the right eye disorder, left foot plantar
fasciitis, and bipolar disorder; and denied entitlement to
TDIU and nonservice-connected pension. The evaluation of the
low back disorder was increased from 10 percent to 20
percent. The veteran appealed the rating action. A January
2002 rating decision increased the evaluation of the right
eye disorder from 20 percent to 30 percent. After issuance
of the Statement of the Case (SOC), the veteran perfected his
appeal. A January 2005 rating decision increased the
evaluation of the low back disorder from 20 percent to 60
percent. The July 2005 rating decision increased the
evaluation of bipolar disorder from 10 percent to 30 percent.
In his Notice of Disagreement, the veteran requested a local
RO hearing before a Decision Review Officer. In the VA Form
9 equivalent, the veteran's then attorney withdrew the
hearing request. A September 2005 RO letter informed the
veteran of the Decision Review Officer process and offered
him another opportunity to request a hearing. The claims
file reflects no evidence of a response from the veteran.
FINDINGS OF FACT
1. The RO has notified the veteran of the evidence needed to
substantiate his claims and fulfilled the duty to assist him
in developing that evidence.
2. The veteran's back disability manifests with degenerative
disc disease, pain, and mild limitation of motion; there is
no evidence of incapacitating episodes, nor are there chronic
neurological manifestations sufficient to more nearly
approximate a separate compensable rating for such.
3. For the period prior to January 12, 2004, the veteran's
bipolar disorder manifested primarily with depression, but
the veteran maintained a healthy marital relationship and
maintained an active interest in activities such as hiking,
fishing, and working on cars.
4. Occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships, was not
more nearly approximated.
5. The veteran's left foot disorder manifests with
subjective pain and stiffness and tenderness. Moderate foot
disability has not been more nearly approximated.
6. The veteran's right eye disorder manifests with visual
acuity of 20/400, with normal vision in the nonservice-
connected left eye.
7. The current combined evaluation of all of the veteran's
service-connected disabilities is 80 percent.
8. The record does not reflect that the veteran is unable to
obtain or maintain substantially gainful employment due
solely to his service-connected disabilities.
9. The record does not reflect that the veteran is unable to
obtain or maintain substantially gainful employment due to
his disabilities or age.
CONCLUSIONS OF LAW
1. The requirements for a rating in excess of 60 percent for
a degenerative disc disease of the lumbosacral spine have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code
5293 (in effect prior to September 23, 2002), Diagnostic Code
5293 (September 23, 2002), Diagnostic Code 5243 (2005).
2. Resolving all doubt in favor of the veteran, the
requirements for a rating of 30 percent for bipolar disorder
for the period prior to January 12, 2004, have been more
nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002);
38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, Diagnostic Code
9432 (2005).
3. The requirements for a rating in excess of 30 percent for
bipolar disorder have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130,
Diagnostic Code 9432 (2005).
4. The requirements for a rating in excess of 10 percent for
plantar fasciitis, left foot, status post-operative have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code
5284 (2005).
5. The requirements for a rating in excess of 30 percent for
macular hole, right eye, have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.75,
4.83a, 4.84a, Diagnostic Code 6077 (2005).
6. The requirements for TDIU have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.356, 4.1, 4.3, 4.16
(2005).
7. The requirements for nonservice-connected pension have
not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002);
38 C.F.R. §§ 4.3, 4.16, 4.17 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002) redefined VA's duty to assist the veteran in the
development of a claim. VA regulations for the
implementation of the VCAA were codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005).
The notice requirements of the VCAA require VA to notify the
veteran of any evidence that is necessary to substantiate his
claim, as well as the evidence VA will attempt to obtain and
which evidence he is responsible for providing. Quartuccio
v. Principi, 16 Vet. App. 183 (2002). The requirements apply
to all five elements of a service connection claim: veteran
status, existence of a disability, a connection between the
veteran's service and the disability, degree of disability,
and effective date of the disability. Dingess/Hartman v.
Nicholson, Nos. 01-1917 and 02-1506 (U.S. Vet. App. Mar. 3,
2006). Such notice must be provided to a claimant before the
initial unfavorable decision on a claim for VA benefits by
the agency of original jurisdiction (in this case, the RO).
Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).
However, the VCAA notice requirements may be satisfied if any
errors in the timing or content of such notice are not
prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet.
App. 103 (2005); see also Pelegrini, 18 Vet. App. at 121.
In this case, in a March 2005 letter, the RO provided notice
to the veteran regarding what information and evidence is
needed to substantiate the claims for an increased rating,
TDIU and nonservice-connected pension, as well as what
information and evidence must be submitted by the veteran,
what information and evidence will be obtained by VA, and the
need for the veteran to advise VA of or submit any further
evidence in his possession.
The veteran was also provided with a copy of the appealed
rating decision, as well as a January 2002 Statement of the
Case (SOC), and July, September, and October 2005
Supplemental Statements of the Case (SSOC). These documents
provided him with notice of the law and governing
regulations, as well as the reasons for the determinations
made regarding his claim. By way of these documents, he also
were specifically informed of the cumulative evidence already
having been previously provided to VA or obtained by VA on
the veteran's behalf. Therefore, the Board finds that the
veteran was notified and aware of the evidence needed to
substantiate this claim, the avenues through which he might
obtain such evidence, and the allocation of responsibilities
between himself and VA in obtaining such evidence.
Accordingly, there is no further duty to notify, and no
prejudice to the veteran exists by deciding the claim.
The record also reflects that VA has made reasonable efforts
to obtain relevant records adequately identified by the
veteran. Specifically, the information and evidence that
have been associated with the claims file includes the
veteran's service medical records, post-service medical
records, examination reports and lay statements.
The claims file reflects evidence that the veteran applied
for and was denied benefits administered by the Social
Security Administration (SSA). Generally, once the VA is put
on notice that the veteran is in receipt of such benefits,
the VA has a duty to obtain such records. Murincsak v.
Derwinski, 2 Vet. App. 363 (1992); Masors v. Derwinski, 2
Vet. App. 181 (1992). However, after the RO requested SSA to
provide the records used in its determination, the veteran,
in a December 2003 letter, informed the RO that no records
other than his VA treatment records were used in the SSA
determination, he enclosed the original of the SSA
Determination Letter, and informed the RO that a decision
should be made on his claim. Thus, the Board finds that the
duty to assist required no further action by the RO.
As discussed above, the VCAA provisions have been considered
and complied with. There is no indication that there is
additional evidence to obtain, there is no additional notice
that should be provided, and there has been a complete review
of all the evidence without prejudice to the appellant. As
such, there is no indication that there is any prejudice to
the appellant by the order of the events in this case. See
Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Bernard v.
Brown, 4 Vet. App. 384 (1993). Moreover, as the Board
concludes below that the preponderance of the evidence is
against the appellant's claim for an increased rating on most
of his claims, TDIU, and nonservice connected pension, any
question as to an appropriate effective date to be assigned
is rendered moot. Any error in the sequence of events or
content of the notice is not shown to have any effect on the
case or to cause injury to the claimant. Thus, any such
error is harmless and does not prohibit consideration of this
matter on the merits. See Dingess, supra; Mayfield, supra;
see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.
Cir. 1998).
Under the circumstances in this case, the veteran has
received the notice and assistance contemplated by law and
adjudication of the claim poses no risk of prejudice to the
veteran. See Mayfield, supra; Smith v. Gober, 14 Vet. App.
227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz
v. Principi, 15 Vet. App. 143 (2001) (VCAA does not require
remand where VA thoroughly discussed factual determinations
leading to conclusion and evidence of record provides
plausible basis for factual conclusions, and where
development of the evidence was as complete as was necessary
for a fair adjudication of the claims).
Claims for Increase
Factual Background
I. Back Disability
As will be discussed further below, in light of the RO's
action, the Board will set forth and discuss only the medical
evidence related to the veteran's neurological symptoms, if
any, connected to his back disability.
Historically, a September 1997 rating decision granted the
veteran service connection for lumbosacral strain. He
submitted his current application for an increase in May
2000. The May 2000 spine examination report reflects that
physical examination showed the veteran to be grossly intact
neurologically. A December 2000 total body scan was normal.
CT examination of the thoracic and lumbar spine showed mild
degenerative disc disease at T3 and T4. Reflexes and pulses
were normal. VA treatment records for the remainder of 2000
through June 2001 reflect that the veteran was administered
epidural steroid injections in his thoracic spine, but
examination showed him to be normal neurologically. The
September 2001 rating decision increased the veteran's
evaluation for lumbosacral strain from 10 percent to 20
percent, effective May 2000.
A February 2002 pain management note reflects that a January
2002 MRI report showed mild degenerative disc disease at the
L5-S1 level. There was no herniated disc or spinal stenosis.
X-ray revealed mild minimal degenerative arthritic changes of
the sacroiliac joints. A March 2002 report reflects that
examination revealed straight leg raising to be negative,
lower extremity myotomes were 5/5 and symmetric, and lower
extremity dermotomes were intact and symmetric. Lower
extremity reflexes are 2/4 and equal in both knee jerk and
ankle jerk reflexes. Distal pedal pulses were 2/2 and
symmetric and distally, there was no Babinski present. The
veteran's gait did not appear spastic.
A July 2002 pain management clinic note reflects that
examination revealed paravertebral spasm at T3-T10, motor
strength of 5/5, and sensation intact throughout. The note
reflects that there was no MRI evidence of neuropathic or
bony pathology.
A January 2005 neurology note reflects that the veteran
complained of constant mid-back pain and persistent spasm.
Examination showed the veteran's motor strength in the upper
and lower extremities to be 5/5 bilaterally. Deep tendon
reflexes were 2+ and symmetric. The examiner noted no
sensory deficits and cranial nerves II through XII were
normal. The veteran manifested no evidence of ptosis or
facial droop or Hoffmann's sign. The examiner observed that
there were no pathologies to explain the veteran's symptoms.
The January 2005 rating decision designated the veteran's
back disability as degenerative disc disease and, resolving
doubt in the veteran's favor despite the lack of neurological
symptoms, increased his evaluation from 20 percent to 60
percent, effective May 2000, the date his claim was received.
The May 2005 spine examination report reflects that the
veteran denied any bladder or bowel involvement, leg or foot
weakness, or paresthesia. He reported weekly numbness and
monthly falls and unsteadiness, but the note also reflects
that those complaints were not related to his back disorder.
He also reported weekly flare-ups which lasted on average one
day. The veteran related that his pain was severe and that
it radiated to his right leg. Measurements of the lower
extremities revealed no differences at mid-thigh and mid-
calf. Physical examination revealed no ankylosis. There was
no spasm, atrophy, guarding, pain with motion, tenderness or
weakness related to the lumbosacral spine. Range of motion
on forward flexion was to 66 degrees and extension was to 18
degrees. Left lateral flexion was to 10 degrees and right
was to 18 degrees. Left lateral rotation was to 20 degrees
bilaterally.
There was no abnormal sensation in either the upper or lower
extremities. Reflexes were normal bilaterally. Lasegue' s
sign was negative. A November 2004 MRI examination report
reflects that the MRI showed a small disc herniation at L5-
S1, which did not appear to affect the exiting nerves. There
was a mild disc bulge at L4-L5 without significant stenosis.
A small left paracentral herniation at T7-T8 deformed the sac
but did not touch the cord.
II. Bipolar Disorder
Historically, the June 1996 rating decision granted service
connection for a nervous condition with a noncompensable
evaluation. A September 1997 rating decision granted a
compensable evaluation for manic-depressive disorder,
effective April 1996. The September 2001 rating decision
denied the veteran's application for an increase.
A June 2000 VA treatment note reflects that the veteran
related that he had two to three manic episodes per year,
with the then most recent having occurred in May 2000. He
related that, during such episodes, he felt full of energy
and did not sleep for three to four nights, and would
occasionally disappear and have no recollection where he had
been. He denied the use of drugs or alcohol during such
episodes. He also reported having felt depressed for years
but denied he ever tried to hurt himself. The examiner noted
the veteran's cognition to be intact and his insight and
judgment good, and his thought process to be linear and goal
directed. He denied suicide or homicide ideation or any
plans. The examiner diagnosed bipolar disorder, mild,
cannabis abuse, and non-compliance with medications. Axis V,
Global Assessment of Functioning (GAF), was assessed as 55.
Treatment included an increase in his Sertraline to 50 mg.
An August 2000 follow-up note reflects that the veteran
denied any symptoms of psychosis or mania or of suicide or
homicide ideation. His affect was restricted and his mood,
"OK." The examiner noted no psychomotor retardation or
agitation, speech was spontaneous, normal rate, and tight
association. Thought content was without auditory or visual
hallucinations, suicidal or homicidal ideation, and his
thought process was linear, logical, with flight of ideas or
looseness of association. Insight and judgment were good.
His most recent bipolar episode was diagnosed as manic, and
his GAF was assessed as 65. The examiner directed
discontinuance of Sertraline, as the veteran reported that
his decreased sleep, increased energy level, and irritability
resolved when he discontinued it.
The May 2001 examination report reflects that the veteran
reported that he was taking Venlafaxine and that, while it
caused some impotency problems, it had significantly reduced
his depression. His complaint was depression. He denied
chronic anxiety, and did not report any panic attacks or
obsessive or ritualistic behavior. He related that he felt
depressed all the time, but it was significantly less while
on his medication. The veteran also reported occasional
crying spells when his back pain was really bad. He denied
any suicide or homicide ideation, or any lack of energy. He
was discouraged about his back condition. He related that he
slept 6 to 7 hours per night off and on, but that he woke up
sore and tired due to his back. He related that he had
interests, as he enjoyed activities which included hiking,
fishing, and working on cars, though his back limited those
activities. He denied any manic episodes for a long time,
hallucinations, and delusions.
The examiner noted that his impulse control appeared
unimpaired. The veteran denied abuse of alcohol or use of
illicit drugs. He related that his wife was his best friend
and that they socialized with other couples. Mental status
examination revealed the veteran exhibited good grooming and
hygiene, and he was alert and oriented times three. No
inappropriate behavior was noted. There was no irrelevant,
illogical, or obscure speech patterns noted. His affect was
mildly restricted in range and psychomotor activity was
within normal limits. There was no impairment in thought
processes or communication, and he showed no memory loss or
impairment. His bipolar disorder was assessed as being in a
depressed stage. The examiner did not assess a GAF.
A January 2004 psychological assessment note related to the
veteran's back pain management reflects that he was well
dressed, alert, and oriented times three. His speech was
normal, and he appeared cognitively intact. His affect was
somewhat restricted, and he described his current mood as
down and gloomy. He reported recent sleep disturbance,
feelings of guilt, and rumination. He demonstrated no overt
symptoms of psychosis, and he denied suicide or homicide
ideation. The mid-January 2004 follow-up reflects that the
veteran related that his wife was very supportive, and the
examiner noted that he had a good sense of humor that might
be very helpful in his recovery from depression. A late
January 2004 assessment reflects that the veteran's speech
was somewhat slow and normal in tone and content. His affect
was restricted, although he demonstrated occasional
appropriate reactivity. He described his mood as "just
here, sad," and he reported tearfulness, low mood feelings
of guilt and decreased interest, motivation, and energy. He
also reported occasional passive suicide ideation but
spontaneously stated that he would "never do that." He
denied homicide ideation and he demonstrated no overt
symptoms of anxiety or psychosis.
The February 2004 follow-up reflects that the veteran
reported that the Amitriptyline 50 mg had helped his mood,
and that he felt the depression was over, he was more
energetic and more like his old self. The examiner noted
that self-assessment to be double edged, as the old self got
very angry and could be belligerent. The examiner noted the
veteran's mood was clearly improved and his affect was
broader.
The January 2005 examination report reflects that the veteran
reported that he was back on Venlafaxine, but he still had
significant feelings of depression due to his chronic pain.
He described his wife as wonderful, as she understood him,
and they had a good relationship, though sometimes it was
adversely impacted by his periodic irritability, social
withdrawal, and reduced communication. The veteran related
that they occurred when his back pain increased, and he felt
guilty watching his wife take care of everything, including
their two-year-old epileptic son. The veteran was not
working at the time of the examination, and he related that
his friends did not come around any more, because he was
unable to do the active things that they like to do. He
spent time with his son, although he struggled to pick him
up.
The examiner noted no impairment of thought processes or
communication or any delusions or hallucinations. He denied
any suicide or homicide ideation, and his grooming and
hygiene were adequate. The veteran was oriented, but he
complained of problematic short-term memory. His wife had to
write down things so he would not forget them, and she
handled his medications because of his forgetfulness. There
was no obsessive-compulsive behavior or panic attacks. He
reported feelings of a depressed mood on a daily basis which
worsens with the level of pain. The pain medication eases
the depressed mood as the day passes. The fact that he is
disabled and unable to do the things he once did also
depressed him, and he has crying spells, pessimism,
hopelessness, and feelings of low self-esteem. The examiner
noted the veteran's impulse control to be adequate, and the
veteran related that his medication helped him to sleep a
full night, though he did not feel rested. The examiner
observed that the veteran had no recent spells of mania, he
continued to have significant depressive symptomatology,
which was part of a bipolar syndrome.
III. Plantar Fasciitis
The veteran underwent plantar release surgery in 1992 while
in active service. The June 1996 rating decision granted
service connection with a noncompensable evaluation. A
September 1997 rating decision granted a compensable
evaluation of 10 percent.
The May 2001 examination report reflects that the veteran is
left hand dominant. He related that he still had pain from
his plantar fasciitis, and that his foot was getting worse,
as reflected by his inability to run. The examiner noted
tenderness.
The May 2005 examination report reflects that the veteran
related his standing was limited to 15 to 30 minutes, and he
could walk a quarter of a mile. He also described pain on
the bottom of his foot between the first and second toes and
numbness on the dorsum. The veteran related that his
symptoms were worse with the first steps of the morning and
that it ached to walk. Physical examination revealed no
abnormal motion, crepitus, edema, effusion, fatigability,
redness, painful motion. There was tenderness under the
arches of the left foot. The examiner noted that there was
no weakness or evidence of abnormal weight bearing. The
examiner noted an antalgic gait. X-rays of the left foot
were normal. There was pain on motion but no limitation of
motion. There was no evidence of ankylosis or toe deformity.
Pulses of both feet were normal. The May 2005 spine
examination noted the veteran had a normal gait.
IV. Right Eye
The May 2001 examination report reflects that the veteran has
a macular hole which was incurred from trauma approximately
in 1991. The report reflects that his vision had been stable
recently. Physical examination revealed his best corrected
visual acuity to be 20/400 in the right eye and 20/20 in the
left eye. External examination was normal. The intraocular
pressure were 11 in each eye. The pupils were dilated in the
media and fundi were normal, with the exception of a small,
round retinal defect in the fovial area of the right retina.
The examiner diagnosed the macular hole as stable.
Analysis
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule) and are intended to represent the average
impairment of earning capacity resulting from disability.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
VA regulations require that disability evaluations be based
upon the most complete evaluation of the condition that can
be feasibility constructed with interpretation of examination
reports, in light of the whole history, so as to reflect all
elements of the disability. Medical as well as industrial
history is to be considered. Many factors are to be
considered in evaluating disabilities of the musculoskeletal
system and these include pain, weakness, limitation of
motion, and atrophy. Painful motion with the joint or
periarticular pathology, which produces disability, warrants
the minimum compensation. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40,
4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).
Moreover, pertinent regulations do not require that all cases
show all findings specified by the Rating Schedule, but that
findings sufficiently characteristic to identify the disease
and the resulting disability and above all, coordination of
rating with impairment of function will be expected in all
cases. 38 C.F.R. § 4.21. Therefore, where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern,
and past medical reports do not take precedence over current
findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
The Board considers the applicability of a higher rating for
the entire period in which the appeal has been pending. Id;
Powell v. West, 13 Vet. App. 31, 35 (1999). The fact that a
claimant is awarded a rating increase less than the maximum
allowable does not dismiss an appeal. An application for an
increased rating is deemed to be for the maximum allowable.
AB v. Brown, 6 Vet. App. 35 (1993).
I. Back Disability
The rating criteria for spine pathology have changed twice
since the veteran submitted his claim for an increase. When
the regulations concerning entitlement to a higher rating are
changed during the course of an appeal, the veteran may be
entitled to resolution of his claim under the criteria that
are to his advantage. The old rating criteria may be applied
throughout the period of the appeal, if they are more
favorable to the veteran. New rating criteria, however, may
be applied only from the effective date of the change
forward, unless the regulatory change specifically permits
retroactive application. 38 U.S.C.A. § 5110(g); VA O.G.C.
Prec. Op. No. 7-2003 (Nov. 19, 2003); VA O.G.C. Prec. Op. No.
3-2000 (April 10, 2000).
Under the criteria in effect at the time the veteran filed
his claim, pronounced intervertebral disc syndrome, with
persistent symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to
site of diseased disc, little intermittent relief, warranted
an evaluation of 60 percent. 38 C.F.R. § 4.71a, Diagnostic
Code 5293 (in effect prior to September 23, 2002). A 60
percent evaluation was the maximum scheduler evaluation under
the prior criteria.
The criteria for rating intervertebral disc syndrome was
changed, effective September 23, 2002. This change required
intervertebral disc syndrome to be rated (preoperatively or
postoperatively) either on the total duration of
incapacitating episodes over the past 12 months or by
combining under § 4.25 separate evaluations of its chronic
orthopedic and neurologic manifestations along with
evaluations for all other disabilities, whichever method
results in the higher evaluation. 38 C.F.R. § 4.71a,
Diagnostic Code 5293 (September 23, 2002) (67 F.R. 54345,
54349, August 22, 2002). An incapacitating episode is
defined as a period of acute signs and symptoms due to
intervertebral disc syndrome that requires bed rest
prescribed by a physician and treatment by a physician. Id.,
Note 1. When evaluating on the basis of chronic
manifestations, orthopedic disabilities will be evaluated
using criteria for the most appropriate orthopedic diagnostic
code or codes. Neurologic disabilities will be separately
evaluated using criteria for the most appropriate neurologic
diagnostic code or codes. Id., Note 2.
The claims file reflects no evidence of incapacitating
episodes as defined by the rating criteria. Neither is there
any evidence of ankylosis of the spine or vertebra fracture
residuals. The pre-2003 rating criteria for spine pathology
other than intervertebral disc syndrome provided that the
maximum schedular rating for either limitation of motion of
the lumbar spine or lumbosacral strain was 40 percent.
38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2002). Thus,
were the veteran rated for the chronic orthopedic
manifestations of his intervertebral disc syndrome under
Diagnostic Code 5293, Note 2 (in effect prior to September
26, 2003), the maximum rating assignable would be 40 percent.
The preponderance of the evidence does not show the veteran
to more nearly approximate a compensable evaluation for
chronic neurological manifestations such as sciatica or the
peripheral nerves related to the upper extremities. The
examination reports and treatment notes reflect that the
veteran was found to be normal neurologically. While the
veteran subjectively reported some numbness, the May 2005
examination revealed a normal sensory and reflex examination.
The MRI examination reports reflected no findings of nerve
involvement from his disc bulges or herniations of his spine.
Thus, the veteran would not receive a more favorable rating
if evaluated separately under the rating criteria effective
September 23, 2002 or September 26, 2003, as the maximum he
could get would be 40 percent for orthopedic disabilities and
zero percent for neurological disabilities. See 38 C.F.R.
§ 4.71a, Diagnostic Code 5292 (2003), and General Formula for
Diseases and Injuries of the Spine (2005).
Thus, the 60 percent evaluation currently assigned under
Diagnostic Code 5293 (in effect prior to September 23, 2002)
to be the most favorable, and that an increased rating is not
warranted.
The Board further finds that the evidence does not show the
veteran's back disability picture to be so unusual or
exceptional as to render the rating schedule impractical and
support a referral for extra-schedular consideration. See
38 C.F.R. § 3.321(b)(1). There is nothing in the record to
distinguish his case from the cases of numerous other
veteran's who are subject to the schedular rating criteria
for the same disability. Thus, based on the record and the
lack of objective findings of severe limitation of motion or
any neurological symptoms, the Board finds that the currently
assigned 60 percent schedular rating has already adequately
addressed, as far as can practicably be determined, the
average impairment of earning capacity due to the veteran's
service-connected low back condition. See 38 C.F.R. § 4.1.
In addition, there is no evidence revealing frequent periods
of hospitalization. Therefore, in the absence of such
factors, the Board finds that the criteria for submission for
consideration of an extraschedular rating pursuant to
38 C.F.R. § 3.321(b)(1) are not met.
The Board has considered the doctrine of reasonable doubt and
finds that the veteran has received the benefit of every
doubt, where applicable. The Board notes that the veteran
has received the maximum schedular rating for intervertebral
disc syndrome even though there is scant evidence of the
neurological symptomatology normally associated with such.
Thus, the Board finds that 60 percent adequately compensates
the veteran for his functional loss due to pain, fatigue, and
weakness of his back. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40,
4.45, 4.59.
II. Bipolar Disorder
Current rating evaluations of mental disorders requires a
thorough familiarity with the criteria of the Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition (DSM-
IV), 38 C.F.R. § 4.130, but the VA rating criteria govern the
overall evaluation via an overall assessment of one's
disability picture. See Mauerhan v. Principi, 16 Vet. App.
436 (2002). An evaluation of the disability level of a
mental disorder is based on the total evidentiary picture of
the appellant's occupational and social impairment. Further,
social impairment is not the sole criterion on which an
evaluation is based. 38 C.F.R. § 4.126(a), (b).
The applicable rating criteria provide that a mental disorder
which results in occupational and social impairment due to
mild or transient symptoms which decrease work efficiency and
ability to perform occupational tasks only during periods of
significant stress; or, symptoms are controlled by continuous
medication, warrants an evaluation of 10 percent. 38 C.F.R.
§ 4.130, Diagnostic Code 9432. A 30 percent evaluation is
assigned for occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, mild memory
loss (such as forgetting names, directions, recent events).
A 50 percent evaluation will be assigned for a mental
disorder which produces occupational and social impairment
with reduced reliability and productivity due to such
symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships. Id.
Occupational and social impairment reflects deficiencies in
most areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near continuous panic or depression affecting the
ability to function independently, appropriately, and
effectively; impaired impulse control; spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances; or an
inability to establish and maintain effective relationships,
warrant an evaluation of 70 percent. Id.
Total occupational and social impairment, due to such
symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of
hurting self or others; intermittent inability to
perform activities of daily living (including
maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names
of close relatives, own occupation, or own name,
warrants a 100 percent rating.
The Board finds that the preponderance of the evidence shows
the veteran's bipolar disorder to have more nearly
approximated a 10 percent evaluation for the period prior to
January 12, 2004. 38 C.F.R. §§ 4.3, 4.7. In the summer or
2000, the veteran's disorder manifested with mania, and he
related that sometimes he had no recollection of where he had
been for an unspecified period of time. Nonetheless, the
June 2000 treatment note reflected no cognitive
abnormalities, and the veteran denied any suicide or homicide
ideation. The examiner assessed the veteran's disorder as
mild, but assigned a GAF of 55. The GAF considers
psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness. DSM-IV, p.
46. A GAF of 55 is mid-way of the range 51 to 60, which is
reflective of moderate symptoms. Id., at 47. At the August
2000 follow-up, the veteran manifested a restricted affect
and an "OK" mood but no cognitive abnormalities. A GAF of
65 was assessed, which reflected some mild symptoms.
Resolving all doubt in favor of the veteran, the Board finds
that the findings of depression in the medical evidence since
the date of the current claim cause the veteran's bipolar
disorder to more nearly approximate the criteria for a 30
percent rating. 38 C.F.R. § 4.7.
The Board finds, however, that the veteran's bipolar disorder
does not more nearly approximate a 50 percent or higher
evaluation. 38 C.F.R. § 4.7. As of the May 2001
examination, the veteran's main complaint was depression. A
mildly restricted affect was noted, but otherwise, the
examiner noted no findings which would more nearly
approximate a 50 percent evaluation. The veteran related
that he still had a healthy interest in activities such as
hiking, fishing, and working on cars, to the extent that his
back disorder allowed him. His reported crying spells were
related to his back pain. The veteran showed no memory loss
or impairment, and there were no panic attacks or suicide or
homicide ideation.
The evidence shows the veteran's disorder to have
continuously manifested disturbance of mood via his
depression and short-term memory impairment, but the 2004
treatment notes and the January 2005 examination report
reflected no findings of long-term memory impairment, panic
attacks, impaired judgment or abstract thinking, or defects
in the veteran's speech. The veteran's affect was not
flattened but restricted. As noted previously, depression is
one of the criteria supporting a 30 percent evaluation.
Further, the veteran reported a very supportive and nurturing
marital relationship, and he spent time with his epileptic
son. The report also reflected the veteran's interest in
outside social relationships, as he related that decreased
contact with his friends was not due to his desire to isolate
himself from them but because they preferred active
activities which he no longer was able to do. Thus, the
preponderance of the evidence does not establish that the
veteran's bipolar disorder more nearly approximates a 50
percent or higher evaluation. 38 C.F.R. § 4.7.
The Board further finds that the evidence does not show the
veteran's bipolar disorder disability picture to be so
unusual or exceptional as to render the rating schedule
impractical and support a referral for extra-schedular
consideration. See 38 C.F.R. § 3.321(b)(1). The objective
findings noted in the evidence do not show marked
interference with employment due solely to his bipolar
disorder, nor is he frequently hospitalized for this
condition.
III. Plantar Fasciitis
Severe foot injury warrants an evaluation of 30 percent;
moderately severe injury, 20 percent; and moderate injury, 10
percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. If there
is actual loss of the use of the foot, the evaluation is 40
percent. Id., Note.
The veteran's primary symptomatology is subjective pain and
tenderness. The May 2005 examination noted no limitation of
motion or other objective findings which would more nearly
approximate moderately severe residuals. For example, there
was no swelling, limited motion, spasm, or calluses, and X-
ray was normal. Thus, the Board finds that the veteran's
left foot disorder more nearly approximates a 10 percent
evaluation, and that 10 percent adequately compensates him
for his functional loss due to pain and fatigability.
38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59.
The Board further finds that the evidence does not show the
veteran's left foot disability picture to be so unusual or
exceptional as to render the rating schedule impractical and
support a referral for extra-schedular consideration. See
38 C.F.R. § 3.321(b)(1). The objective findings noted in the
evidence do not show marked interference with employment due
solely to his left foot, nor is he frequently hospitalized
for this condition.
IV. Right Eye
For VA purposes, the severity of visual acuity loss is
determined by applying the criteria set forth at 38 C.F.R. §
4.84a. Under these criteria, impairment of central visual
acuity is evaluated from noncompensable to 100 percent based
on the degree of the resulting impairment of visual acuity.
38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079. A
disability rating for visual impairment is based on the best
distant vision obtainable after the best correction by
glasses. 38 C.F.R. § 4.75.
Diagnostic Codes 6061-6079 contain the criteria to evaluate
impairment of central visual acuity. The veteran is only
service-connected for his right eye, and is currently
receiving 30 percent. To warrant a higher evaluation, the
evidence must show anatomical loss of the right eye, which
would warrant a 40 percent evaluation. 38 C.F.R. § 4.84a,
Diagnostic Code 6066. An increased rating could also be
assigned if the veteran was blind, with only light perception
in his right eye, and the same in his nonservice-connected
left eye. See 38 C.F.R. § 3.383(a)(1).
The Board finds that the evidence of record shows the
veteran's right eye disorder warrants no more than a 30
percent evaluation. 38 C.F.R. § 4.7. The veteran's best
corrected right eye visual acuity of 20/400 (10/200) and a
nonservice-connected left eye warrants an evaluation of 30
percent. 38 C.F.R. § 4.84a, Diagnostic Code 6077.
Anatomical loss of the right eye, or blindness of both eyes
is not shown. Thus, an increased rating is not warranted.
The Board further finds that the evidence does not show the
veteran's right eye disability picture to be so unusual or
exceptional as to render the rating schedule impractical and
support a referral for extra-schedular consideration. See
38 C.F.R. § 3.321(b)(1). The objective findings noted in the
evidence do not show marked interference with employment due
solely to his right eye disorder, nor is he frequently
hospitalized for this condition.
TDIU
Factual Background
In addition to the disabilities which are the subject of this
appeal, the veteran is also service connected for right ear
hearing loss, external otitis, urticaria with angioedema,
tension headaches, and chronic fatigue due to an undiagnosed
illness. The chronic fatigue is evaluated as 10 percent
disabling, and the rest are noncompensable. His combined
evaluation for his service connected conditions is 80
percent.
The veteran's July 2001 VA Form 21-8940 reflects that he has
one year of college, and that he last worked full time in May
2000. In an attached statement, he related that he had held
too many jobs to list each individually, and that, because of
his depression, he could not remember all of the dates and
locations. He related that he could work for short periods
of time until his pain becomes so great that he has to leave.
He also related that the frequency of medical appointments
have caused him to lose jobs. An August 2000 treatment note
reflects that he had quit his job three months earlier
without listing a reason.
In December 2000, a VA nurse practitioner opined that the
veteran could return to work, but that he should not lift
more than 10 pounds, stand in one position for more than 30
minutes, and should be allowed a 15 minute break every 2
hours. As of a May 2001 examination he was employed as a
truck driver, and that he was working pretty much every day,
but his back condition made it difficult. In his October
2001 Notice of Disagreement, the veteran related that, while
he had gainful employment, he had severe back pain before,
during, and after the work day. He related that, but for the
need to support his family, he would not be employed.
Records reflect that in December 2001 a VA provider opined
that, due to the veteran's progressive thoracic spine pain
and his depressive disorder, the veteran was not employable
for his then current job because of activity restrictions.
The provider recommended the veteran be trained in a vocation
that did not involve standing for extended periods of time or
lifting. He observed that the veteran was very bright, with
college education, and some computer skills.
An August 2002 pain management note reflects that the veteran
was being assessed for possible abuse of prescription drugs
as well as cannabis use. A January 2004 treatment note
reflects that the veteran had a car transport business, and
that he had recently moved it from Florida to Maryland. The
May 2005 examination report reflects that, while the veteran
reported significant struggles to work secondary to his back
problem, the car transport business failed in part due to a
lack of qualified drivers. He also related that he had tried
seven jobs but they were too much for him to handle
physically.
A May 2005 VA Form 21-8940 revealed the veteran had 2 years
of college. In a June 2005 statement, the veteran related
that he worked approximately 12 to 16
jobs during the prior nine years, as he forced himself to
work despite the pain he experienced as the result of his
disability. He related that he had to choose between
enduring the pain and taking the pain medication, but the
latter affected his ability to concentrate, perform simple
tasks, or stay awake. He maintained that he could not
maintain gainful employment. The veteran's wife estimated
his number of jobs as over 10, but he had to resign or was
terminated due to the pain or time lost for medical
appointments. She related that his pain medication made him
tired and impacted his memory. The veteran's father-in-law
essentially echoed the veteran's wife's statement.
Records from three former employers reflect that the veteran
worked for brief periods in 2003 and 2004. He lost no time
due to disability. The August 2005 form reflects that the
veteran did office work, and that he worked from September
2004 to January 2005. Although the form reflects that he
went on disability, no specifics were provided.
Analysis
A total disability will be considered to exist when there is
present any impairment of mind or body which is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation. A total disability may or
may not be permanent. Total ratings will not be assigned,
generally, for temporary exacerbations or acute infectious
diseases except where specifically prescribed by the
schedule. 38 C.F.R. § 3.340(a).
A total disability rating for compensation purposes may be
assigned where the schedular rating is less than total, where
it is found that the disabled person is unable to secure or
follow substantially gainful occupation as a result of a
service-connected disability ratable at 60 percent or more or
as a result of two or more disabilities, providing at least
one disability is ratable at 40 percent or more, and there is
sufficient additional service-connected disability to bring
the combined rating to 70 percent or more. Disability of one
or both lower extremities is considered as one disability.
38 C.F.R. §§ 3.340, 4.16(a). Consideration may be given to
the veteran's level of education, special training, and
previous work experience in arriving at a conclusion, but not
to his or her age or to the impairment caused by nonservice-
connected disabilities. See 38 C.F.R. §§ 3.341, 4.19; see
also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In other
words, the Board must determine if there are circumstances
apart from the veteran's nonservice-connected disabilities
and his advanced age, that places him in a different position
than other veterans with a 80 percent combined disability
rating. Van Hoose, 4 Vet. App. at 363.
The sole fact that a claimant is unemployed or has difficulty
obtaining employment is not enough. A high rating in itself
is a recognition that the impairment makes it difficult to
obtain and keep employment. The question is whether the
veteran is capable of performing the physical and mental acts
required by employment, not whether the veteran can find
employment. Van Hoose v. Brown, 4 Vet. App. 361.
The Board acknowledges the fact that the veteran meets the
disability percentage requirements for TDIU. The Board notes
the voluminous treatment records related to the veteran's
back disability and his constant complaints of persistent
pain. The Board also notes, however, that the extensive
neurological and pain management notes reflect that providers
found no clinical etiology for the veteran's persistent
complaints of pain. Although the veteran relates that he
worked with pain to support his family, he has been able to
obtain employment.
The Board acknowledges his assertions that he had to quit the
jobs due to his pain or medical appointments, but the
provider in 2002 assessed the veteran as very bright with
good education and work skills. The medical evidence did not
find him unable to perform any gainful employment. There
also is the matter of the February 2005 pain management note
that the veteran had failed to appear for physical therapy,
and that one of the reasons his back had not improved was
that he had not done exercises to strengthen his back
muscles. The same note reflects that the veteran reported he
had quit a job as a dispatcher for a truck company because of
multiple medical appointments. When asked if he was going to
return to work, he said no, and that he expected to address
his financial condition by an increase in his disability
evaluation. In 2003, SSA denied the veteran's claim that he
was unable to work due to disability.
The preponderance of the competent evidence of record does
not show the veteran to be unable to maintain gainful
employment due to his service-connected disabilities. None
of his medical providers have opined that he was unable to
maintain gainful employment. Although reasonable
restrictions were suggested by medical personnel, the veteran
was not deemed unemployable.
Nonservice-Connected Pension
Analysis
Under the provisions of 38 U.S.C.A. § 1521, pension is
payable to a veteran who served for ninety (90) days or more
during a period of war and who is permanently and totally
disabled due to nonservice-connected disabilities that are
not the result of the veteran's willful misconduct.
Permanent and total disability will be held to exist when an
individual is unemployable as a result of disabilities that
are reasonably certain to last throughout the remainder of
that person's life. Talley v. Derwinski, 2 Vet. App. 282,
285 (1992); 38 C.F.R. §§ 3.340(b), 4.15.
There are three alternative bases upon which a finding of
permanent and total disability for pension purposes may be
established. The first way is to establish that the veteran
has a lifetime impairment which is sufficient to render it
impossible for the "average person" to follow a substantially
gainful occupation under the appropriate diagnostic codes of
the VA's Schedule for Rating Disabilities. 38 U.S.C.A. §
1502(a)(1); 38 C.F.R. §§ 3.340(a), 4.15. Alternatively, a
veteran may establish permanent and total disability for
pension purposes, absent a combined 100 percent scheduler
evaluation, by proving that the individual (as opposed to the
average person) has a lifetime impairment precluding the
veteran from securing and following substantially gainful
employment. 38 U.S.C.A. §§ 1502, 1521(a; 38 C.F.R. § 4.17.
Under this analysis, if there is only one such disability, it
must be ratable as 60 percent or more, and if there are two
or more disabilities, there must be at least one disability
ratable as 40 percent or more, with a combined disability
rating of at least 70 percent.
However, if a veteran cannot qualify for a permanent and
total disability under the above rating scheme following
applicable schedular criteria, a permanent and total
disability rating for pension purposes may be granted on an
extraschedular basis if the veteran is subjectively found to
be unemployable by reason of his or her disabilities, age,
occupational background, and other related factors. See 38
C.F.R. §§ 3.321(b)(2), 4.17(b).
The evidence set forth above under the issue of entitlement
to TDIU is incorporated here by reference. The veteran's
combined disability evaluation for pension purposes is also
80 percent. The claims file reflects seven nonservice-
connected disorders, all of which are deemed noncompensable.
They are as follows: residuals of right arm injury, bilateral
knee condition, right foot disorder, left foot disorder other
than plantar fasciitis, left ear hearing loss, residuals of
head injury, and a disorder claimed as Gulf War Syndrome.
As noted above, the veteran has significant disabilities for
which is evaluated at 80 percent combined. Nonetheless, as
discussed above, the evidence of record does not show the
veteran to be permanently and totally disabled as a result of
his disabilities and age. The veteran has in fact obtained
gainful employment, and the evidence of record does not show
that the extent of his disabilities was the primary reason
for his frequent departure from several jobs. Medical
providers deemed him employable as long as he observed
standing and lifting restrictions. Thus, the preponderance
of the evidence is against entitlement to nonservice-
connected pension.
As a final matter, the Board notes that with the assignment
of an 80 percent combined rating, the veteran's compensation
benefits provide a greater monetary benefit than nonservice-
connected pension, for a veteran with a spouse and two
children.
ORDER
Entitlement to an evaluation in excess of 60 percent for a
low back disability is denied.
Entitlement to an evaluation in excess of 30 percent for the
period prior to January 12, 2004, for bipolar disorder, is
granted.
Entitlement to an evaluation in excess of 30 percent for
bipolar disorder is denied.
Entitlement to an evaluation in excess of 10 percent for
plantar fasciitis, left foot, status post-operative is
denied.
Entitlement to an evaluation in excess of 30 percent for
macular hole, right eye, is denied.
Entitlement to TDIU is denied.
Entitlement to non-service-connected pension is denied.
____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs